FILED

United States Court of Appeals

Tenth Circuit

December 23, 2020

Christopher M. Wolpert

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HILLIARD A. FULGHAM,

Petitioner - Appellant,

v.

SCOTT CROW, Director

Respondent - Appellee.

No. 20-5008

(D.C. No. 4:17-CV-00010-CVE-FHM)

(N.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

*

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.

Pro se Petitioner-Appellant Hilliard A. Fulgham

1

seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. His application for a COA raises

two claims: (1) an alleged violation of his rights under the Interstate Agreement

on Detainers Act (“IADA”), OKLA. STAT. tit. 22, § 1347, based on Oklahoma’s

* This Order is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. It may be cited, however,

for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1

and Tenth Circuit Rule 32.1.

1 Because Mr. Fulgham is proceeding pro se, we construe his filings

liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); accord Garza

v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but “we will not ‘assume the

role of advocate,’” United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir.

2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).
purported failure to timely bring him to trial, and (2) an alleged Sixth Amendment

violation based on ineffective assistance of trial counsel. Exercising jurisdiction

under 28 U.S.C. § 1291, we DENY Mr. Fulgham’s application for a COA as to

each claim and DISMISS this matter.

I

In April 2015, Mr. Fulgham was found guilty on two counts of first-degree

murder and sentenced to life imprisonment without parole in relation to the

stabbing deaths of two women in Tulsa, Oklahoma. On direct appeal to the

Oklahoma Court of Criminal Appeals (“OCCA”), Mr. Fulgham argued his

conviction should be overturned because (1) the trial court violated his rights

under the IADA by failing to bring him to trial within the statute’s 120-day

timeframe; and (2) his trial counsel rendered ineffective assistance by failing to

raise this IADA argument before trial. See Fulgham v. State, 400 P.3d 775, 778,

780 (Okla. Crim. App. 2016).

2

Mr. Fulgham’s first appellate argument turned on Article IV(c) of the

IADA. Under Article IV(c), Mr. Fulgham’s trial was to commence no later than

120 days after he was transferred to Oklahoma from Mississippi, absent a

continuance “for good cause.” See OKLA. STAT. tit. 22, § 1347 (“[T]rial shall be

commenced within one hundred twenty (120) days of the arrival of the prisoner in

2 Mr. Fulgham does not include the OCCA ruling in the record, but we

take judicial notice of the ruling as it appears on Westlaw.

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the receiving state, but for good cause shown . . . , the court . . . may grant any

necessary or reasonable continuance.”). Further, Article V(c) of the IADA

specifies that charges “not brought to trial” within this 120-day timeframe “shall”

be dismissed “with prejudice.” Id. Mr. Fulgham was transferred to Oklahoma on

September 18, 2013, but his trial did not commence until April 6, 2015—565 days

after his arrival in Oklahoma. Based on this delay, he argued Oklahoma’s

criminal charges against him should have been dismissed pursuant to the IADA

and, therefore, his conviction should be overturned.

The OCCA rejected this argument, pointing out that Mr. Fulgham never

raised any IADA-related issues prior to trial; indeed, the trial court raised

questions pertaining to the IADA at Mr. Fulgham’s sentencing hearing, “well

after the completion of his jury trial.” Fulgham, 400 P.3d at 778.

3 By failing to

invoke his IADA rights pre-trial, Mr. Fulgham “acquiesced to treatment

inconsistent with” the statute’s time limitations and, thus, “waived any rights

granted to him under the IAD[A]—along with his ability to subsequently

complain such rights had been violated when he proceeded to trial.” Id. at

779–80.

3 At Mr. Fulgham’s initial sentencing hearing, the trial court noted it

“discovered a Request for Temporary Custody filed pursuant to the IAD[A] in the

record” and “directed the parties to ‘look into this’ and specifically research the

issue of waiver.” Fulgham, 400 P.3d at 778. When Mr. Fulgham was eventually

sentenced, the trial court concluded that he had “effectively waived” his IADA

rights. Id. at 778–79.

3
The OCCA also rejected Mr. Fulgham’s ineffective-assistance-of-counsel

argument. See id. at 780–81. At bottom, this argument was entirely speculative:

in essence, Mr. Fulgham argued that, had his counsel asserted his IADA rights

before trial, his case would have been dismissed, and that by failing to do so, his

counsel rendered constitutionally deficient performance and prejudiced his

defense. But the OCCA refused to “blindly make the leap necessary to find

prejudice in [Mr. Fulgham’s] case based on speculation alone.” Id. at 780.

4

Thus, because Mr. Fulgham “failed to present any evidence demonstrating the

reasonable probability of a different result in the proceedings,” he did not

establish ineffective assistance of counsel. Id. at 780–81.

Mr. Fulgham reasserted these arguments in his § 2254 petition, which the

district court denied. While the district court agreed with the OCCA that Mr.

Fulgham waived his IADA claim, it noted additionally that Mr. Fulgham was not

automatically entitled to habeas relief based on a bare IADA violation. Rather, he

needed to show that such a violation prejudiced his defense or constituted a

miscarriage of justice. Having failed to make this showing, the court reasoned

that Mr. Fulgham was not entitled to habeas relief based on his IADA claim. The

4 Even were it to speculate, the OCCA noted that it was not

“unrealistic to assume that the trial court would have advanced the date of [Mr.

Fulgham’s] trial or otherwise ensured a proper record was made establishing good

cause for delay,” had Mr. Fulgham or his counsel “flagged th[e] issue some time

prior to trial”—“either of which would have satisfied” the IADA’s requirements.

Fulgham, 400 P.3d at 780.

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court also rejected Mr. Fulgham’s ineffective-assistance-of-counsel claim, as Mr.

Fulgham failed to “demonstrate[] a reasonable probability that the trial court

would have dismissed [his] case” and, therefore, failed to show the requisite

prejudice. R., Vol. I, at 251 (Dist. Ct. Order, filed Dec. 31, 2019). Finally, the

district court denied Mr. Fulgham a COA. Mr. Fulgham timely applied for a COA

before this court.

II

As a state prisoner proceeding under 28 U.S.C. § 2254, Mr. Fulgham must

obtain a COA to be heard on the merits of his appeal. See 28 U.S.C.

§ 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). But he

cannot obtain a COA without making “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), which requires him to “sho[w] that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were ‘adequate to deserve encouragement to proceed further.’”

Miller-El, 537 U.S. at 336 (alteration in original) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)). In other words, Mr. Fulgham must show that the district

court’s resolution of his claims was “debatable or wrong.” Slack, 529 U.S.

at 484. This showing is “the only question” at the COA phase of habeas

litigation; “a merits analysis” is improper. Buck v. Davis, 137 S. Ct. 759, 773

(2017).

5
If a state court has already addressed the merits of a habeas petitioner’s

claims—as the OCCA has done here with Mr. Fulgham’s claims—the “deferential

treatment of state court decisions” under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) “must be incorporated into our consideration of

[the] petitioner’s request for a COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th

Cir. 2004). “Under AEDPA deference, a federal court’s habeas review is limited

to determining whether the OCCA’s conclusion[s were] ‘contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States’ or whether [they] ‘w[ere] based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.’” Lockett v. Trammell, 711 F.3d 1218, 1230 (10th Cir.

2013) (quoting 28 U.S.C. § 2254(d)). This standard is “highly deferential . . .

[and] demands that state-court decisions be given the benefit of the doubt.”

Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir. 2013) (alteration and ellipsis

in original) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

III

Mr. Fulgham seeks a COA on the same two claims he raised before the

OCCA on direct appeal and before the district court in his habeas petition: (1) an

alleged violation of his IADA rights and (2) an alleged ineffective assistance of

trial counsel, essentially for failing to raise the first claim pre-trial. In seeking a

COA, Mr. Fulgham largely rehashes his arguments made before the OCCA and

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district court, while failing to substantively challenge the bases of the district

court’s denial of his habeas petition. We conclude that Mr. Fulgham is not

entitled to a COA.

First, as to Mr. Fulgham’s IADA claim, both the OCCA and the district

court essentially concluded that Mr. Fulgham likely waived this claim by failing

to raise it before his trial. Cf. Reed v. Farley, 512 U.S. 339, 352 (1994) (plurality

opinion) (“[W]e conclude that a state court’s failure to observe the 120-day rule

of IAD[A] Article IV(c) is not cognizable under § 2254 when the defendant

registered no objection to the trial date at the time it was set, and suffered no

prejudice attributable to the delayed commencement.”). But irrespective of any

possible waiver, Mr. Fulgham’s first claim does not warrant the issuance of a

COA because he has failed to make a threshold substantial showing that any

IADA-related error abridged or otherwise violated his constitutional rights.

We have held that “rights created by the [IADA] are statutory, not

fundamental, constitutional, or jurisdictional in nature”—and, thus, an “IAD[A]

violation might be ‘grounds for collateral attack on a . . . conviction and

sentence’” only “if ‘special circumstances’ exist[] in a particular case.” Knox v.

Wyo. Dep’t of Corrs., 34 F.3d 964, 967 (10th Cir. 1994) (quoting Greathouse v.

United States, 655 F.2d 1032, 1034 (10th Cir. 1981)); see Raifsnider v. Colorado,

299 F. App’x 825, 827 (10th Cir. 2008) (unpublished) (“This circuit has held that

an IADA violation does not ‘rise to a constitutional deprivation’ without, at the

7
very least, a showing that ‘actual prejudice’ resulted from the violation.” (quoting

Dobson v. Hershberger, 124 F.3d 216, 1997 WL 543370, at *2 (10th Cir. 1997)

(unpublished table decision))).

“Special circumstances” or “actual prejudice,” in turn, require “a

fundamental defect which inherently results in a complete miscarriage of justice,

[or] an omission inconsistent with the rudimentary demands of fair procedure.”

Raifsnider, 299 F. App’x at 827 (alteration in original) (quoting Knox, 34 F.3d

at 968); see also Reed, 512 U.S. at 354 (recalling “the established rule with

respect to nonconstitutional claims” in habeas proceedings: “[N]onconstitutional

claims . . . can be raised on collateral review only if the alleged error constitutes a

‘“fundamental defect which inherently results in a complete miscarriage of

justice.”’” (alteration and ellipsis in original) (quoting Stone v. Powell, 428 U.S.

465, 477 n.10 (1976))).

Even if we assumed that an IADA violation occurred, Mr. Fulgham “has

not alleged ‘any prejudicial error that qualifies as a fundamental defect which

inherently results in a complete miscarriage of justice, or an omission inconsistent

with the rudimentary demands of fair procedure’”—and, thus, “has no claim that

would support [habeas] relief.” Stallings v. Franco, 576 F. App’x 820, 822–23

(10th Cir. 2014) (unpublished) (quoting Knox, 34 F.3d at 968). Thus, Mr.

Fulgham cannot establish that the district court’s denial of his habeas petition

8
concerning his IADA claim is debatable or wrong. He is not entitled to a COA on

this claim.

Mr. Fulgham is likewise not entitled to a COA on his second claim, for

ineffective assistance of counsel. “Under [the governing Strickland] standard, in

order to prevail on a claim of ineffective assistance of counsel, Mr. [Fulgham]

must show both that his counsel’s performance ‘fell below an objective standard

of reasonableness’ and that ‘the deficient performance prejudiced the defense.’”

Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (quoting Strickland v.

Washington, 466 U.S. 668, 687–88 (1984)). “The [prejudice] prong of Strickland

. . . requires [Mr. Fulgham] to show ‘that there is a reasonable probability’”—not

“mere speculation”—“‘that, but for [his] counsel’s error, “the result of the

proceeding would have been different.”’” Hooks v. Workman, 689 F.3d 1148,

1187 (10th Cir. 2012) (quoting United States v. Challoner, 583 F.3d 745, 749

(10th Cir. 2009)). “Courts are free to address these two prongs [of deficient

performance and prejudice under Strickland] in any order, and failure under either

is dispositive.” Byrd, 645 F.3d at 1168.

We conclude that reasonable jurists could not debate the correctness of the

district court’s resolution of Mr. Fulgham’s ineffective-assistance claim and,

therefore, he is not entitled to a COA on this claim. That is true because the

district court rightly determined that the OCCA’s ruling on the prejudice prong of

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Strickland was not contrary to, nor an unreasonable application of, clearly

established federal law.

More specifically, Mr. Fulgham merely speculates that the charges against

him would have been dismissed had his trial counsel raised the IADA’s time

limitations pre-trial. But this contention rests on an entirely hypothetical—and

implausible—factual scenario. As both the OCCA and district court pointed out,

there is every reason to believe that, had Mr. Fulgham’s trial counsel timely

invoked the IADA’s 120-day limit, the trial court would have made a good cause

finding for delay or otherwise accelerated Mr. Fulgham’s trial date. Mr.

Fulgham’s theory of Strickland prejudice, then, is too conjectural to warrant

habeas relief. See Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The

likelihood of a different result must be substantial, not just conceivable.”). Thus,

as with his first claim, Mr. Fulgham fails to show the district court’s rejection of

his second claim is debatable or wrong; therefore, he is not entitled to a COA on

this second claim.

IV

For the foregoing reasons, we DENY Mr. Fulgham’s application for a COA

and DISMISS this matter.

ENTERED FOR THE COURT

Jerome A. Holmes

Circuit Judge

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